Like many aspects of Brexit, the future remains uncertain. Commercial common sense dictates that in the world of intellectual property, like many other areas, agreement will need to be reached between the UK and EU which preserves the ability to trade and conduct commercial relations on a continuing basis. However, in the absence of agreement with Brussels, there are no guarantees.
Owners of EU trade marks and registered designs will no doubt be aware that the EU marks and designs currently cover continental Europe and the UK. Once the UK leaves the EU, the EU trade mark and registered design will cease to cover the UK. Whether matters will be quite as black and white remains to be seen but an EU Communique issued on the subject makes it clear that EU rules on EU trade marks will no longer apply in the UK. That being so, EU registered trade marks will cease to have effect in the UK post Brexit.
There are many holders of EU trade marks who registered EU rights primarily to protect rights in the UK with the added bonus of European wide protection. For these organisations who wish to preserve their rights in the UK it is imperative that a deal is struck between Westminster and Brussels, failing which UK rights must be registered in order to ensure ongoing protection.
Whether or not a deal can be agreed and what that will look is difficult to predict. However, the EU has also made it clear that following Brexit, solicitors and trade mark attorneys who do not have a presence within the EU will no longer be able to prosecute cases before the EU Intellectual Property Office unless specific agreement can be reached.
Various options have been considered which would give EU rights holders some protection or the opportunity to preserve UK rights on withdrawal from the EU but no decision has been reached. For those wishing to ensure continuity of rights, registering corresponding UK rights prior to Brexit is the failsafe approach. It may not prove necessary in the long run (assuming agreement can be reached with Europe) but at this time, it is impossible to say. If in doubt, the safest approach may therefore be for EU rights holders to register corresponding UK rights.
Our experts can provide further advice and information and assist in registering UK rights for those affected or concerned about losing registered trade mark and design rights on Brexit.
Lynn Richmond, Partner firstname.lastname@example.org T: 0131 222 2939
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